DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW.

Political Science
Project on
JUDICIARY AS A THIRD ARM OF

LEGISLATURE

Submitted for the project work undertaken in the partial fulfilment

of B.A. LL.B (Hons.) 5 years integrated course at
Dr. RMLNLU, Lucknow.

SUBMITTED TO:
MR. BRIJESH MISHRA

BY:
PRANJAL SINGH

Asst. Professor in Political Science.

ROLL No: 94
Semester- 1

ACKNOWLEDGEMENT
This project has been written in a simple and lucid manner for better
understanding and appreciation of the study. However, it would not have been
possible without the kind support and help of many individuals and
organizations. I would like to extend my sincere thanks to all of them.
I am highly indebted to my teacher, MR. BRIJESH MISHRA, Assistant Professor
(Political Science), Dr. R.M.L. National Law University for her guidance and
constant supervision as well as for providing necessary information regarding
the project & also for her support in completing the project.
I would like to express my gratitude towards the library staff of Dr. R.M.L.
National Law University for their kind co-operation and encouragement which
helped me in completion of this project.
Last but not the least, a sincere word of appreciation to my family and friends
and thanks to people who have willingly helped me out with their abilities.

Introduction
26th January, 1950 marked a great event in the long & chequered history of India. It brought
into force the present constitution of India which announced to the world the birth of a new
republic. The struggle for national independence was over by the August 15, 1947. On that
day the two hundred years old British rule in India was brought to an end by the transfer of
political authority to Indian hands. The politics of India takes place in a framework of a
federal form of government. In India, the Prime Minister of India is identified as the head of
government of the nation, while the President of India is the formal head of state and holds
reserve powers.

Legislative branch
The constitution designates the Parliament of India as the legislative branch to oversee the
operation of the government. India's bicameral parliament consists of the Rajya Sabha
(Council of States) and the Lok Sabha (House of the People). The Council of Ministers is held
responsible to the Lok Sabha.

Judicial branch
The constitution designates the Supreme Court, the High Courts and the lower courts as the
authority to resolve disputes among the people as well as the disputes related to the people
and the government.

Legislature and Judiciary

The legislative power is vested on the Union Government and the two houses of Indian
Parliament- the Lok Sabha and Rajya Sabha- and also the State Government and two state
legislatures - Vidhan Sabha and Vidhan Parishad. The Constitution of India has distributed
legislative powers between Parliament and State Legislatures as per the lists of entries in
the Seventh Schedule of the Constitution. The Constitution of India has demarcated the
subjects under which each tier of the government will have executive and legislative
powers. Some subjects fall under the Union List, some under the State List, while some
subjects fall under the category of Concurrent List. The Union Government has the powers
to enact laws on subjects under the Union List of the Constitution, while the State
Governments have the powers to enact laws on subjects that fall under the purview of the
State List. Both the Central as well as the State Governments can enact laws on subjects
under the Concurrent List, however, in case of conflict, the laws enacted by the Union
Government under the Concurrent List overrides the laws enacted by the State
Government.

Laws in India can be made through

1. Legislature
2. Delegated Legislature
3. By the judiciary

1. By the Legislature :
Legislative proposals are brought before either house of the Parliament of India in the form
of a bill. A bill is the draft of a legislative proposal, which, when passed by both houses of
Parliament and assented to by the President, becomes an Act of Parliament. As soon as the
bill is been framed have to be published in the newspapers and suggestion are been invited
from the general people and after going through the suggestion of the people the bill is
been amended and then Bill may be introduced in the Parliament by ministers or private
members. The former are called government bills and the latter, private members' bills. Bills
may also be classified as public bills and private bills. A public bill is one referring to a matter
applying to the public in general, whereas a private bill relates to a particular person or
corporation or institution.

2. Delegated Legislation :
Delegated legislation means permitting bodies beneath parliament to pass their own
legislation. The three main forms of delegated legislation are statutory instruments, by-laws
and orders in Council as well as rules and regulation that are made under various
legislations.

3. By the Judiciary :
Judiciary can make laws only when it expands the scope of an established law, or when a
situation has arisen which cannot be adjudicated with the prevalent laws of the country or
to protect against constitutional amendments. The Constitution of India was apparently
intended to entrench the more permanent values cherished by the society, particularly in its
part III. The founding fathers wanted the Constitution to be an adaptable document rather
than a rigid framework for governance. Hence Parliament was invested with the power
under article 368 to amend it. However, with the intention of preserving the original ideals
envisioned by the Constitution makers, the Supreme Court in Kesvananda Bharti v. State of
Kerela1 held that parliament could not distort damage or alter the essential features or the
basic structure of the constitution under the pretext of amending it, thereby serving as a
check to the parliamentary powers.

(1973) 4 SCC 225

Fundamental rights enshrined in part III of the constitution is a restriction on the law making
power of the Indian Parliament. It includes freedom of speech, expression, association,
movement, residence, property, profession and personal liberty. To guarantee and promote
fundamental rights and freedoms of the citizens and the respect for the principles of the
democratic State based on rule of law. The popular habeas corpus case, ADM Jabalpur v.
Shivakant Shukla2 is one of the most important cases when it comes to rule of law. In this
case, the question before the court was whether there was any rule of law in India apart
from Article 21. This was in context of suspension of enforcement of Articles 14, 21 and 22
during the proclamation of an emergency. The answer of the majority of the bench was in
negative for the question of law. However Justice H.R. Khanna dissented from the majority
opinion and observed that Even in absence of Article 21 in the Constitution, the state has
got no power to deprive a person of his life and liberty without the authority of law. Without
such sanctity of life and liberty, the distinction between a lawless society and one governed
by laws would cease to have any meaning.
Also, when there is no law prevalent in the country which can deal with a situation before
the court, such as the Aruna Shaunbag case, where the woman had spent 37 years in a
Mumbai hospital bed in a coma, after she was brutally assaulted by her rapist. The court
turned down a petition seeking her mercy killing, saying the hospital staff had expressed
willingness to continue supporting her, & thus permitted the process of passive euthanasia,
the court however held that active euthanasia, or actively ending a terminally ill person's life
by administering lethal injections or other means, would be illegal. And in such cases the
court has passed a rule to be followed till a law is made.
However the judgement given by the court remains valid only till the judgement is either
upheld by the legislature and a law is made out of it. But if the legislature makes a law
which is in negation of the judgement then the law such made becomes the law of the law
and the judgement is quashed. It is to be duly noted that law making authority rests only
with the legislature.
No person shall be deprived of his life or personal liberties except according to procedure
established by law or of his property save by authority of law. The government officials and
the government itself are not above the law. In India the concept is that of equality before
the law and equal protection of laws. Any legal wrong committed by any person would be
punished in a similar pattern. The law adjudicated in the ordinary courts of law applies to all
the people with equal force and bidingness. In public service also the doctrine of equality is
accepted.In Punjab v. Om Prakash3 , it was observed by the supreme court that, In our
constitutional system, the central and most characteristic feature is the concept of rule of
law which means, in the present context, the authority of law courts to test all
administrative action by the standard of legality. The administrative or executive action that
does not meet the standard will be set aside if the aggrieved person brings the matter into
notice.In India, the meaning of rule of law has been much expanded. It is regarded as a part
of the basic structure of the Constitution and, therefore, it cannot be abrogated or
destroyed even by Parliament. The ideals of constitution; liberty, equality and fraternity
2
3

(1976) 2 SCC 521, AIR 1976 SC

AIR 1951 Rajasthan 127

have been enshrined in the preamble. Constitution makes the supreme law of the land and
every law enacted should be in conformity to it. Any violation makes the law ultra vires.

CONCLUSION

Therefore, in the ultimate analysis, courts should have the power to control the
administrative action and any overt diminution of that power is to be criticized. The
principle implicit in the rule of law that the executive must act under the law and not by its
own fiat is still a cardinal principle of the common law system, which is being followed by
India . In the common law system the executive is regarded as not having any inherent
powers of its own, but all its powers flow and emanate from the law. It is one of the vital
principles playing an important role in democratic countries like India. There is a thin line
between judicial review and judicial activism. Rule of law serves as the basis of judicial
review of administrative action. The judiciary sees to it that the executive keeps itself within
the limits of law and does not overstep the same. Thus, judicial activism is kept into check.
However there are instances in India where judiciary has tried to infringe upon the territory
of the executive and the legislature. A recent example of this would be the present
reservation scenario for the other backward classes. The judiciary propagated that the
creamy layer should be excluded from the benefits of the reservation policy, whereas the
legislature and the executive were against it.

BIBLIOGRAPHY
Following books were referred to:
Constitutional & Administrative Law by Hilaire Barnett.
Judicial Reforms in India Issues and Aspects by Arnab Kumar Hazra, and Bibek
Debroy.
General Principles of Constitutional and Administrative Law by John Alder.
Introduction to the Constitution of India by Dr. Durga Das Basu.
Indian Government and Politics by B. L. Fadia.
Nature of the Indian Legal System by V. S. Deshpandede.